Slashdot Mirror
A Simple Plan To Defeat Dumb Patents
Steve Jones writes "With the EU being rumored to look at software patents again I thought I'd have a look at the root of the problem — the US Patent Office — and work out if there is a simple way to defeat dumb patents. The big thing that defeats a patent is prior art. At the Patent Office they have the definition of Prior Art that includes the phrase: 'known or used by others in this country, or was patented or described in a printed publication in this or a foreign country.' Now suppose that every time we have an idea that we think is 'obvious' but that hasn't been done before, or something we think would be interesting but don't have the money to create — that we blogged about that idea, tagging it as 'prior art' via Technorati. This would give people an RSS feed of prior art." Read on for more details of Steve's proposal.
My argument is that by doing this we can, rightly, claim that the ideas have been described in the 21st-century version of a printed publication. Even if that is challenged, it is undeniable that by using the RSS feed it can be proven that people in a given country could have "known" about it.
I'm fed up thinking "Bloody hell I did that ten years ago," or "I thought about doing that, its a bit obvious" — when companies with as little intention as I had in developing the idea start putting the squeeze on businesses and developers. What I've always lacked is the visible proof to submit against a claim. This is a simple suggestion about using the power of the Web to create a massive prior art database. IANAL, but could it be this simple?
My argument is that by doing this we can, rightly, claim that the ideas have been described in the 21st-century version of a printed publication. Even if that is challenged, it is undeniable that by using the RSS feed it can be proven that people in a given country could have "known" about it.
I'm fed up thinking "Bloody hell I did that ten years ago," or "I thought about doing that, its a bit obvious" — when companies with as little intention as I had in developing the idea start putting the squeeze on businesses and developers. What I've always lacked is the visible proof to submit against a claim. This is a simple suggestion about using the power of the Web to create a massive prior art database. IANAL, but could it be this simple?
Sure, in RETROSPECT, many of these crazy patents are obvious. But how could you possibly begin to catalog every obvious idea, technique, innovation, or invention?
This is not to mention the practical problems with this website. Who is going to pay for all the lawyers you need after the site becomes embroiled in about 1,000 lawsuits? Who is going to determine WHICH art is truly "prior" when users start fighting over who "did it first"? How are you going to deal with griefers and hucksters who spam the site with stuff like "A technique by which ink is applied to paper using an ink-filled tube" (or, God forbid, try to claim their own patent on obvious stuff by using the site as evidence).
SJW: Someone who has run out of real oppression, and has to fake it.
Ah yes. This sounds a lot like my 'electronic patent-nulling system'. You can license it from me, if you like. Does AU$500/user/year sound reasonable? :)
Personally, I don't think we can record all the blindingly obvious stuff we think of, mainly because it's blindingly obvious. Or very often, we can think of salient prior art that would probably invalidate any patent claims, so we assume it's not worth mentioning.
I would rather see the patent process made a little more transparent: any patent application has to go through 90 days on a public wiki or discussion board, where we could view applications and immediately reference prior art. This might simplify the job of the patent reviewers, who cannot possibly know the history of entire industries. They could simply check out the claims of prior art (which themselves could be ranked by visitors for validity -- "oh ya, I remember THAT") and immediately see that, duh, one-click purchasing is a really dumb idea.
Why would anyone participate? First, it's in our nature. You might have heard of Slashdot, where people with varying kinds of brain matter make varying kinds of comments about varying kinds of "news." But second and more importantly, it would be protection. If you work in a business that would be affected by a one-click patent, you have incentive to make sure nobody can charge you for it, or sue you for using it, if it isn't really an original idea.
Today's patent process in the U.S. is slightly public, I know, but how about making it totally Web 2.0 and buzzword-compliant?
$nice = $webHosting + $domainNames + $sslCerts
The Peer to Patent project has gone live, and while it has its own problems, it's a simple, elegant solution that doesn't require something ridiculous like a massive database of ideas. Anyone can sign up and suggest prior art on submitted patents before they're approved. It's a good example of community self-policing.
I had an idea. I (effectively) blogged it. And if someone else comes up with it, and makes a working prototype, no sane person should argue that my blog should keep them from earning a patent.
Every patent is an obvious idea in retrospect. In reverse, it's also true that the idea of most patents was obvious beforehand: there were undoubtedly many people who thought that making an electrical device which produces light would be a great idea before Edison came along. The devil is in the details, and what matters is implementation. The standard of patents is that the process they describe should be sufficiently unique and innovative that an expert of the field would not conceive doing it that way prior to being introduced to the patented process; that's the logic that underlies the decision behind the Seldon patent decision.
Simply jotting down ideas doesn't address this issue at all. Even outlining the method doesn't really help, since the patent applicant could easily argue that while it might have seemed like an obvious approach, there were non-trivial technical issues that would arise in trying to implement that approach that their process addresses; the fact that the blogger would neither have mentioned those issues, nor built a working prototype, could reasonably be seen to support the applicant. The amount of effort that would need to go into each blog to actually make it worthwhile would basically boil down to implenting the idea, and that's far beyond what I suspect either the author wishes to suggest, or what any blogger would be willing to invest.
The problems with the patent process are well-established: an overburdened reviewing agency, combined with a fundamental issue regarding the appropriateness of patents on concepts rather than physical entities. I don't see how creating an unmoderated repository of random ideas solves either problem.